State v. Dove ( 2023 )

422
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted July 6, portion of judgment imposing $2,000 fine on Count 1 vacated,
remanded for resentencing, otherwise affirmed August 9, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
MARKUS HENRY DOVE,
Defendant-Appellant.
Lane County Circuit Court
20CR46261; A176824
R. Curtis Conover, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Andrew D. Robinson, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
AOYAGI, P. J.
Portion of judgment imposing $2,000 fine on Count 1
vacated; remanded for resentencing; otherwise affirmed.
Nonprecedential Memo Op: 327 Or App 422 (2023) 423
AOYAGI, P. J.
Defendant was convicted of felony driving under the
influence of intoxicants (DUII), ORS 813.011 (Count 1); driv-
ing while suspended or revoked, ORS 811.182(4) (Count 2);
and reckless driving, ORS 811.140 (Count 3). On appeal,
defendant assigns error to two of the trial court’s rulings:
first, the denial of his motion to suppress his pre-Miranda
statements and, second, the imposition of a $2,000 fine on
Count 1.
As to the first assignment of error, the trial court
correctly concluded that defendant was not in “compelling
circumstances” during the time period before he was given
Miranda warnings. See State v. Roble-Baker, 340 Or 631, 641,
136 P3d 22 (2006) (describing the proper analysis to deter-
mine whether a person was in “compelling circumstances”
so as to require Miranda warnings); State v. Grimm, 290
Or App 173, 179, 414 P3d 435, rev den, 363 Or 283 (2018)
(“Whether the totality of the circumstances, as found by the
trial court, were compelling, such that Miranda warnings
were required, is a legal question that we review for legal
error.”). Having considered the record and the parties’ argu-
ments, we agree with the state that the trial court did not
err in its legal conclusion and consequent denial of defen-
dant’s motion to suppress.
As to the second assignment of error, defendant did
not preserve the claim of error and therefore requests plain-
error review.1 Defendant argues that the trial court plainly
erred in imposing the $2,000 fine on Count 1, because the
court misunderstood that the fine was mandatory, when it
was not.
Under ORS 813.010(6)(c), a trial court “shall impose”
a minimum fine of $2,000 for a person’s third or subsequent
DUII conviction “if the person is not sentenced to a term
1
“Generally, an issue not preserved in the trial court will not be considered
on appeal.” State v. Wyatt, 331 Or 335, 341, 15 P3d 22 (2000). However, we have
discretion to correct a “plain” error. ORAP 5.45(1). An error is “plain” when it is
an error of law, the legal point is obvious and not reasonably in dispute, and the
error is apparent on the record without our having to choose among competing
inferences. State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013). It is a matter
of discretion whether we will correct a plain error. State v. Gornick, 340 Or 160,
166, 130 P3d 780 (2006).
424 State v. Dove
of imprisonment.” Here, defendant (who has two prior DUII
convictions) was confined to jail for 120 days as a condition of
his probation on Count 1. That qualifies as being “sentenced
to a term of imprisonment” for purposes of ORS 813.010(6)(c).
State v. Frier, 264 Or App 541, 548, 333 P3d 1093 (2014)
(holding that the mandatory minimum $2,000 fine in
ORS 813.010(6)(c) does not apply to a person who is sen-
tenced to jail time as a condition of probation and that it is
reversible error to impose a $2,000 fine based on the errone-
ous belief that it is mandatory). It is apparent from the tran-
script of the sentencing hearing, however, that the court was
unaware of Frier and perceived the fine to be mandatory in
these circumstances.2
The state concedes, and we agree, that the court
plainly erred in imposing the $2,000 fine on Count 1, where
it did so on the legally erroneous premise that the fine was
statutorily required. See State v. Wytcherley, 315 Or App 194,
195, 496 P3d 1158 (2021) (accepting concession of plain error
in same circumstances and noting that “we have corrected
similar errors as plain error in the past”). We also choose to
exercise our discretion to correct the error, as we have done
in the past in similar cases. Doing so serves the ends of jus-
tice, as the error is easily corrected, and the amount at issue
is significant, particularly for an indigent defendant.
Portion of judgment imposing $2,000 fine on Count 1
vacated; remanded for resentencing; otherwise affirmed.
2
During sentencing, this exchange occurred between the court and the
prosecutor:
“THE COURT: * * * And likewise, am I correct that that $2,000 fine on
the driving under the influence is that statutorily required?
“[PROSECUTOR]: Yes, Your Honor. That is statutorily required
unless there’s a term of imprisonment, which I don’t believe local jail time
constitutes.
“THE COURT: Right.”